Citation NR: 9725180
Decision Date: 07/22/97 Archive Date: 08/04/97
DOCKET NO. 95-21 089 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an increased rating for right ankle
disability, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stephen L. Higgs, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1984 to April
1988.
This matter comes to the Board of Veterans’ Appeals on appeal
from a rating decision dated in February 1995 of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
In April 1997, the veteran appeared at a hearing before the
undersigned Member of the Board.
The issue of entitlement to an increased (compensable) rating
for right ear hearing loss had been included in the veteran’s
appeal; however, the veteran withdrew this issue from his
appeal in a written statement dated in April 1997.
REMAND
At a January 1995 VA examination, the veteran was diagnosed
with residual status post surgery on the right ankle for
fracture with decreased range of motion, symptomatic as
discomfort when significant pressure was placed on the ankle,
and a history of locking three times over a period of two
years. However, the examiner did not provide an adequate
assessment of functional impairment due to pain, weakness,
fatigability, or incoordination.
Additionally, the veteran has raised the issue of an extra-
schedular evaluation for his right ankle disability. During
his April 1997 hearing before the undersigned Member of the
Board, the veteran testified that his right ankle disability
had caused him to miss time at work at his current position
as an automobile mechanic, and had caused him to be denied
employment opportunities in the past. Also, during the
hearing, the veteran stated that he had been approved by VA
for vocational rehabilitation. The records upon which this
approval was based might be relevant to the veteran’s appeal
but have not been associated with the claims file.
Finally, the veteran has contended that there are records of
pertinent VA and private medical treatment which have not
been made part of the claims file.
In light of these circumstances, the case is REMANDED to the
RO for the following actions:
1. The veteran should be requested to
identify the names, addresses and
approximate dates of treatment for all
health care providers, VA and private,
who may possess additional records
pertinent to his claim. With any
necessary authorization from the veteran,
the RO should attempt to obtain and
associate with the claims file any
medical records identified by the veteran
which have not been secured previously.
The records sought should include records
of medical treatment at the John Cochran
VA Medical Center in St. Louis, Missouri,
and private medical records of treatment
of Dr. Fagan, most likely dated in 1996.
2. The RO should obtain and associate
with the claims file the veteran’s VA
vocational rehabilitation records or
copies thereof.
3. Then, the RO should arrange for a VA
orthopedic examination of the veteran by
a board certified specialist, if
available, to determine the nature and
extent of the veteran’s right ankle
disability. All indicated studies,
including X-rays and range of motion
studies in degrees, should be performed.
Any scarring associated with surgery for
right ankle disability should be
described, and the examiner should
specifically indicate whether any
scarring is tender and painful on
objective demonstration. Tests of joint
movement against varying resistance
should be performed. The extent of any
incoordination, weakened movement and
excess fatigability on use should be
described. The physician should also
express an opinion concerning whether
there would be additional limits on
functional ability during flare-ups (if
the veteran describes flare-ups), and, if
feasible, express this in terms of
additional degrees of limitation of
motion during flare-ups. If this is not
feasible, the physician should so state.
The physician should also provide an
opinion concerning the impact of the
veteran’s right ankle disability on his
ability to work. The rationale for all
opinions expressed should be explained.
The claims file must be made available to
the physician prior to the examination.
3. Thereafter, the RO should review the
claims file and ensure that all
development actions, including the
medical examination and requested
opinions, have been conducted and
completed in full. Then, the RO should
undertake any other indicated
development, and readjudicate the issue
of entitlement to an increased rating for
right ankle disability. In addressing
this issue, the RO should consider all
pertinent diagnostic codes under the VA
Schedule for Rating Disabilities in 38
C.F.R. Part 4 and application of 38
C.F.R. § 4.40, regarding functional loss
due to pain, 38 C.F.R. § 4.45, regarding
weakness, fatigability, incoordination or
pain on movement of a joint, and 38
C.F.R. § 4.59, regarding painful motion
due to arthritis. See DeLuca v. Brown, 8
Vet.App. 202 (1995). The RO should also
determine whether the case should be
referred to the Director of the
Compensation and Pension Service for
extra-schedular consideration.
4. If the benefit sought on appeal is
not granted to the veteran’s
satisfaction, the RO should issue a
Supplemental Statement of the Case and
afford the veteran and his representative
an appropriate opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. By
this REMAND the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
(CONTINUED ON NEXT PAGE)
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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